AIR POLLUTION:

Court ruling casts doubt on future of EPA monitoring program

A federal court today sided with the Sierra Club in a challenge to a U.S. EPA program that exempts some new facilities from air monitoring and emissions requirements.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled unanimously that EPA exceeded its statutory authority when it set up a significant impact level (SIL) and significant monitoring concentration (SMC) for fine particle pollution from new facilities.

The programs allow new facilities to obtain an exemption from Clean Air Act soot standards if they show their emissions will have only a minimal impact on air quality in the area.

Public health advocates have long characterized the program as a loophole that allows facilities to be built without needed pollution controls.

The court, led by Chief Justice David Sentelle, agreed, vacating and remanding the majority of those regulations.

Sierra Club had argued that the current SIL of 1.2 micrograms per cubic meter as a 24-hour average was flawed for several reasons. Among them, if an area was already close to violating EPA's National Ambient Air Quality Standards for soot, even a minor increase from a new facility would have an important effect on air quality and, therefore, should be closely monitored. Further, the advocates argued that if many new facilities in an area obtained the exemptions, their cumulative impact on air quality would be significant.

EPA, in part, agreed. In their briefs, lawyers for the agency said it did not intend to automatically exempt proposed sources from requirements because of its SIL. EPA officials asked for part of the program to be sent back to the agency for reconsideration.

Sierra Club said that wasn't enough, arguing that EPA doesn't have the authority to issue SILs at all. On that point, Sentelle and the court disagreed.

"We disagree with the Sierra Club that it is necessary to decide the EPA's authority to promulgate SILs at this point," Sentelle wrote.

Sentelle said that issue is not "ripe" for consideration because EPA, when it redrafts the regulations, may decide against including SILs altogether or set up a better SIL system.

The court also rejected arguments from the Utility Air Regulatory Group, an industry intervenor that called for the programs to remain in place.

Similarly, the court sided with Sierra Club on SMC provisions, noting that Congress was "extraordinarily rigid" in mandating preconstruction air quality monitoring.

Advocates have long argued that fine particles are especially harmful because they can get lodged deeply in the lungs, leading to a host of health problems.

David Baron, an attorney with Earthjustice who represented Sierra Club, said the ruling is an "important victory for protecting people's health."

"It was just plain unlawful and unacceptable for EPA to allow new plants to be built without ensuring that new standards would be met," Baron said.

The ruling could have a broad impact on EPA's permitting process, said Jeff Holmstead, a former EPA air chief who now represents industry at the law firm Bracewell and Giuliani.

"This is a big surprise," Holmstead said. "The whole idea of SILs has been a part of the Clean Air Act program for years and years."

Looking ahead, he said, observers will be watching EPA closely to see how officials revise, or get rid of, the program.

"It will depend a lot on how EPA responds," he said. "It could be a big deal."